In The Matter Of The Application For Revocation Under Section 106 Paragraph. 2 The Building Act

Original Language Title: ve věci návrhu na zrušení části § 106 odst. 2 stavebního zákona

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=57974&nr=300~2F2004~20Sb.&ft=txt

300/2004 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 10. March in plenary on the proposal of the regional court in

Ústí nad Labem, Liberec branch, for annulment of part of the provisions of section 106

paragraph. 2 Act No. 50/1976 Coll., on zoning and the building code

(the building Act), as amended by Act No. 82/1998 Coll., as follows:



The words "from 200 000 Eur" in § 106 paragraph. 2 Act No. 50/1976 Coll., on the territorial

planning and building code (the building Act), as amended by Act No. 83/1998

Coll., shall be abolished on the date of publication of the finding in the journal of laws.



Justification



The Constitutional Court has received 27 September. 5. the 2003 proposal for the regional court in Ústí nad

Labem, Liberec branch proposal pursuant to article. 95 para. 2 of the Constitution of the United

Republic (hereinafter "the Constitution") on the cancellation of part of the provisions of § 106 paragraph. 2

Act No. 50/1976 Coll., on zoning and the building code (the building

Act), as amended by Act No. 83/1998 Coll. (hereinafter referred to as the "construction Act"), and

that the words "from 200 000 Eur" conflict with the article. 1 of the Constitution, article. 1 and 11 (1) 1

The Charter of fundamental rights and freedoms ("the Charter") and article. 1

The additional protocol to the Convention on the protection of human rights and fundamental

freedoms (hereinafter referred to as the "Additional Protocol").



A regional court in the design procedure, which was preceded by recapping his

the proposal. In the construction management of the Fund was children and young people "in liquidation"

fined 200 000 CZK for failure of the urgent security

the work, consisting of fencing and the partial stabilisation of the truss and their

"bracing", as well as other security work marked as a violation of

obligations of section 106 paragraph. 2 (a). (g)) the building Act. Children's Fund

and youth in the administrative procedure and in the application against the administrative decision of the

the imposition of fines argued that the work carried out within the limits of their capabilities, and that

collapse of part of the roof has caused exceptionally severe weather. Pointed out,

as a State organization in liquidation does not have money for new investment

the action. A regional court has considered that the lower limit of the fine 200 000 CZK

does not allow to take into account, in particular, to the conditions and to the fact that, according to

article. I, section 4 of Act No. 366/2000 Coll., on the abolition of the Fund children and youth and on the

amendments to certain laws, the liquidator acting on behalf of the Fund may

new commitments to take over only in direct connection with the "termination pending

the commitments ". The regional court considers that the words "from 200 000 Eur" in paragraph 106.

2 the building Act, establishing the lowest penalty for the offences defined in the

the area of the works, are incompatible with those articles of the Constitution, the Charter and

Of the additional protocol. The argument is in the conclusions of the constitutional

of the Court of 13 July. 8. the 2002 declared under no. 405/2002 Coll. the Court

draws attention to the inequality between the wording of the paragraph. 2 and 3 of section 106 of the construction

the law. In the annexes, the Court shall submit a claim and challenged the decision

building management bodies.



The Constitutional Court has called for an expression of 4.6.2003 day deputies and

Senate of the Parliament of the Czech Republic and asked the regional court to borrow

the file.



The Chamber of deputies in its observations to the Court, including the proposal to examine the

a reference to the previous case law of the Constitutional Court and the progress of the legislative

process. The current text of section 106 paragraph. 2 the building Act was

amended by Act No. 83/1998 Coll., the submitter of the proposal, the Government was

Of the CZECH REPUBLIC. According to the explanatory memorandum led to the modification of section 105 and 106 need to fundamentally

change the amount of the fines for building offenses found in comment procedures and

determine the range of rates for the infractions and administrative delicts. The tightening of the

penalties have been supported by some cities that have the most

experience with building nekázní. The Bill was approved in the prescribed

majority of the day, the Senate approved it 13.2.1998 day 18.3.1998,

President of the Republic signed the delivery and the law was duly 6.4.1998 declared.

The legislature acted in the belief that the law is adopted in accordance with the

The Constitution, the constitutional order and the international treaties. It is up to the constitutional

Court to examine the constitutionality of the contested provisions.



In the Senate, the proposal also States that one reason for the extensive

the amendment to the building code, effective from 1.7.1998, was the effort to tighten

penalties for violations of the designated obligations in order to consolidate discipline

in the implementation and use of the buildings. The adoption of the amendment was to achieve

This objective, although significantly narrowed the scope of the administrative discretion of the competent

the Administration, however, has not been removed completely. The administrative authority shall continue to be

consider the circumstances of the case and take them into account when setting the fine.

The Senate recalled that the intention of the claimant accepted and referred to the date of

18.3.1998 approved a Bill in the form adopted by the Chamber of Deputies.

When discussing the proposal did not find, as already stated in its

answer to the notice served under SP. zn. PL. ÚS 3/02, the constitutional grounds for

the opposition. It is up to the Constitutional Court to taking into account the award

published under no. 405/2002 Coll., which concerned the lower boundary of the fines

According to § 106 paragraph. 3 the building Act, the contested provisions.

The Senate in the annex part těsnopisecké reports sent by the

the amendment.



How the adoption of Act No. 82/1998 Coll., which were newly established in the fine

in the field of construction for offences, the Administration has already been the subject of examination

The Constitutional Court when discussing things SP. zn. PL. ÚS 3/02. The results of the

justify the assessment of the proposal on the merits, as the Constitutional Court

the Court held that the law was adopted and issued by the constitutionally prescribed manner,

within the limits of the Constitution laid down the competence, while observing the quorums set out in

article. paragraph 39. 1 and 2 of the Constitution.



The starting point for finding of the Constitutional Court are, if he is fundamentally

depart from its earlier case law, the conclusions expressed in the already cited

the award of the day on 13 August 2002 in case SP. zn. PL. ÚS 3/02 (No 405/2002 Coll.)

the design of the regional court in Hradec Králové on the cancellation of the words "from 500 EUR"

in § 106 paragraph. 3 the building Act.



In that finding, the Constitutional Court held that the anchoring of the minimum

the amount of the fine to the Bill in principle, pursues a legitimate aim, as far

more pronounced way than would be the case only when the determination of the upper

rate allows you to distinguish the seriousness or the hazards of which types of

the infringements. Side-effect of this step is that it limits the

the scope for administrative discretion of the competent State authorities, which has its

the positive consequences for example. in that, to a certain extent aligns the amount of

imposed penalties, or limits the scope for arbitrary or corruption

affected by the conduct of the administrative authorities. This may seem like a

a means of protection against any discrimination, on the other hand, however,

a greater or lesser extent, paušalizuje the severity of the infringement, which

leads to a restriction on the ability of the administrative authority to take into account the specific

circumstances of the case, the person of the offender and his circumstances.



The Constitutional Court concluded that the penalty may under certain circumstances

featuring the hit in particular the fundamental right under article. 11 (1) 1

Of the Charter. The fine can be considered as interference with constitutional dimensions, in

If it will interfere with an individual's financial circumstances with considerable

intensity. Therefore, the Constitutional Court assessed the purpose of intervention in relation to the

the resources used, with a yardstick for the assessment was the principle

of proportionality. The escalation of repression represented by an increase in the upper

the boundaries of the sanctions might populate the intended target and given sufficient

space to reflect the circumstances of a particular case allows you to meet and

the condition of the proportionality of the interference. The setting and increase the lower limit

sanctions to minimize this space does not permit a naturally always apply

intervention is proportionate, since it may have in relation to the entities to whom it is

penalties in the form of fines imposed, sometimes the character of the winding-up. From the top

for those reasons, the Constitutional Court part of the provisions of § 106 paragraph. 3 building

the law finding in the matter of SP. zn. PL. ÚS 3/02.



The Constitutional Court in that the finding respecting the linking of the petite and could not

so cancel now contested part the provisions of § 106 paragraph. 2. He pointed out, however,

the possible disruption of the system and the establishment of binding inequalities with the provisions

§ 106 paragraph. 2 the building Act, in which case the lower limit to the fine

preserved. Indirectly, also expressed the expectation that the legislature

assess its constitutionality.



Evaluation of the draft submitted by the regional court in Usti Labem on branch

Liberec, cannot therefore be inherently different. The lowest of the law

the fines imposed under the legislature defined "moderate" serious violations of

building regulations according to § 106 paragraph. 2 the building Act, the

in such cases, the regional court, which resolves the same

unconstitutional action, which was already a Constitutional Court found. The difference between the

the lowest rate of fines of 500 000 CZK in the case has already been resolved and 200

EUR in case of being searched does not appear substantial. A fine of at least

200 000 CZK for offences as defined in § 106 paragraph. 2 the building Act may

in many individual cases, as well as a fine of 500 to winding-up

000 CZK for offences by the legislature rated as "severe", as defined in

§ 106 paragraph. 3 the building Act. The continued existence of now contested

In addition, the provision would confirmed the imbalance between the penalties for otherwise


serious offences against the law anticipated the building of zoning laws in the

text after the intervention of the Constitutional Court in 2002.



Beyond the previous arguments of the Constitutional Court notes that neposuzoval

the circumstances of the individualization of the administrative punishment, which in the previous

administrative proceedings has occurred, since the proceedings on the application for annulment in part of the Act

meaning of article 87(1). 87 para. 1 (b). and) of the Constitution is a means of abstract

control standards. The conclusion of the Constitutional Court, does not prejudge the outcome of the

the specific procedure for the review and deliktním negotiations Fund children and youth

"in liquidation", which currently takes place before the regional court in

Ústí nad Labem, Liberec branch. The Constitutional Court also only marginally

can comment on the voucher on the limitation of Fund Manager under the legislation

the special law (similar but it is e.g. for bankruptcy administrators

GIST). Prohibition to enter into new commitments cannot prevent fulfilment of the

obligations in an important public interest. Obligations arising from the

regulations to ensure important public interests (here, the construction Act) must

take precedence over editing that specifies the treatment of assets, respectively

This adjustment must be interpreted in such a way as to meet these

obligations to admit. The argument of the adoption of the opinion that the

legal person in liquidation has less responsibility for status and management

the case, which is the owner, could have a dependency on the current

ownership and organisational conditions to establish the de facto inequality between

the content of the title of individual owners.



Based on the above arguments, much of it in the case law of the constitutional

the Court already has a facade, the Constitutional Court considered that the contested provision,

or part of it, is incompatible with the principles of the rule of law and of the Charter and

article. 1 of the Constitution and represents a contradiction with article. 1 and article. 11 (1) 1 of the Charter and

article. 1 of the additional protocol. Therefore, the Constitutional Court had no choice but is

pursuant to section 70 para. 1 Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, repealed.



The President of the Constitutional Court



JUDr. Rychetský v.r.